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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Monday, March 13, 2017

Bus drivers behaving badly

One way to win your employment discrimination case is to prove that you were fired for doing what everyone else was doing, and that the only distinction between you and everyone else is your gender, race, religion, age or disability. That's how this pro se litigant won his appeal in the Second Circuit.

The case is Carris v. First Student, Inc., a summary order decided on March 8. Plaintiff was a school bus driver. She visited a student's home after the student hit and spit on other students on the bus, causing chaos when Plaintiff was trying to drive kids to and/or from school. The decision is not clear how Plaintiff had violated company policy, but she was fired over this.

Under normal circumstances, Plaintiff would have no legal recourse over her termination, even if her termination was unjust. As every human resources professional knows, New York is an "at-will" employment state, which means that most terminations are unreviewable in court. But Plaintiff alleges that other bus drivers did bad things also. The complaint alleges that three white bus drivers who also violated policies concerning student safety were only placed on administrative leave and not fired. The Court of Appeals (Katzmann, Lynch and Chin) says we need some discovery to see if the other drivers' violations were comparably serious to that of Plaintiff, particularly since two of the white bus drivers left sleeping children on buses and one did not report it in hopes that no one would find out about it. The other bus driver, the complaint alleges, "deposited a kindergarten student at an unauthorized stop in the dark, leaving the child at least six minutes away by foot from his home."

In dismissing this case, the district court reasoned as follows:

this is not a case in which Plaintiff points
to a white co-worker who was not fired after engaging in conduct that,
while unknown, reasonably appears to have been comparable to the conduct
in which Plaintiff engaged. Rather, this is a case in which Plaintiff points to three white co-workers who were not fired after engaging in specifically identified conduct that clearly was of less seriousness than that of Plaintiff. Simply stated, the Court cannot find that a bus driver who accidentally dropped a child off at an unauthorized stop (a mere six-minute walk from the child's authorized stop) while on-duty or accidentally fails to sufficiently check a school bus for sleeping children while on-duty (offenses of omission) is comparable to a bus driver who deliberately goes to a student's home while off-duty (an offense of commission), or at least sufficiently comparable to indicate discriminatory intent by Defendant as a result of disparate treatment.

The district court had adopted the employer's argument that Plaintiff's case is different from the other cases because Plaintiff acted intentionally and the others were only negligent. This would seem a decent argument, based on what I know about Second Circuit case law. But the Court of Appeals says "further factual development is needed to aid in the determination of whether Carris was similarly situated to white comparators who received more lenient punishment than she did." For now, she satisfies the lenient pleading standards under Title VII, as set forth in Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015).